Licence Appeal Tribunal File Number: 23-007254/AABS
In the matter of an application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
Pradeep Kumar
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Kathleen Wells
APPEARANCES:
For the Applicant:
Maria Makarova, Paralegal
For the Respondent:
Anju Sharma, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Pradeep Kumar, the applicant, was involved in an automobile accident on July 21, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule"). The applicant was denied benefits by the respondent, TD General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.
ISSUES
2The issues in dispute are:
Are the applicant's injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (MIG) limit?
Is the applicant entitled to $2,743.97 for physiotherapy services, proposed by Psysiomed Westwood Inc. in a treatment plan dated July 6, 2022?
Is the applicant entitled to $2,835.03 for physiotherapy services, proposed by Psysiomed Westwood Inc. in a plan dated January 31, 2023?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
3The applicant was removed from the MIG by the respondent on June 28, 2024. The parties confirm that the treatment plan for a psychological assessment dated March 9, 2023, and the treatment plan for psychological services dated July 21, 2021, were subsequently approved by the insurer on July 2, and July 8, 2024. Therefore, I find that the issues of the applicant's eligibility for removal from the MIG, and his entitlement to the treatment plans for a psychological assessment and psychological treatments as set out in the Case Conference Report and Order (CCRO) dated January 29, 2024, are no longer at issue in this application.
4In his reply submissions, the applicant submits that in August, 2024, the respondent paid the balance owing to Psysiomed Westwood Inc. for physiotherapy services incurred by the applicant. As of September 16, 2024, the applicant had not received a notification or explanation of the payments. The respondent did not acknowledge the payments in their submissions, although the payments appeared to have been made prior to the respondent's submissions being filed. As the payments are significantly less than the amounts of the treatment plans in question, I find that both treatment plans for physiotherapy services remain at issue in this application.
RESULT
5I find that:
The applicant is not entitled to $2,743.97 for a treatment plan for physiotherapy dated July 6, 2022.
The applicant is entitled to $2,835.03 for a treatment plan dated January 31, 2023, with interest in accordance with s. 51 of the Schedule.
The applicant is not entitled to an award.
Procedural Issue
6In his reply submissions, the applicant requests that the respondent's submissions not be considered because the respondent did not comply with the direction in the CCRO that the submissions be double spaced and no more than 10 pages in length. The applicant contends that the lack of compliance and length of the respondent's submissions "caused significant prejudice by compromising procedural fairness of the hearing."
7I find that the applicant has not explained how he would be prejudiced or how procedural fairness would be compromised if I were to accept the respondent's submissions. I also note that the applicant was able to submit submissions in reply to the respondent.
8Therefore, I decline the applicant's request and will consider the respondent's submissions.
ANALYSIS
9To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
10The applicant submits that the treatment plans are reasonable and necessary and relies on the clinical notes and records (CNRs) of Dr. Umang Kachroo, physician, and Dr. David Price, physician, of the Albion Finch Medical Centre. and the CNRs of Physiomed Westwood Inc.
11The respondent argues that the applicant has not met his onus to prove that the treatment plans are reasonable and necessary. The respondent relies on the insurer's examination report (IE) of Dr. Hashmat Khan, dated April 5, 2023, and the OCF-23, dated July 6, 2022, and prepared by Dr. Carla Ciraco, chiropractor, of Physiomed Westwood Inc.
Is the applicant entitled to $2,743.97 for physiotherapy services, proposed by Physiomed Westwood Inc. in a treatment plan dated July 6, 2022?
12I find that the applicant has not established, on a balance of probabilities, that the treatment plan is reasonable and necessary.
13The goals of the treatment plan prepared by Dr. Ciraco are pain reduction, increased range of motion, a return to the activities of normal living, and a return to normal work activities.
14I agree with the applicant that pain reduction is a legitimate goal for treatment, however, I find that he has not provided sufficient evidence to support a finding that the July 6, 2022, treatment plan is reasonable and necessary.
15The respondent submits that the treatment plan was submitted in error and is a duplicate of the OCF-23 that was submitted the same day. The OCF -23 is for $2,200.00 and includes a lesser amount for treatment and $400.00 for a TENS machine and cervical pillow which are not reflected in the treatment plan. The applicant submits that the treatment plan was not submitted in error and is separate from the OCF-23, and notes that the respondent denied the treatment plan based on the applicant being within the MIG. As the applicant has been removed from the MIG, I will consider whether the treatment plan is reasonable and necessary.
16The respondent also argues that the treatment plan is not sufficiently detailed, and that the applicant has not met his onus to prove that the treatment plan is reasonable and necessary. Here, I agree with the respondent.
17The treatment plan was submitted four days after the accident and notes that the applicant has completed two treatments but is silent on the remaining physiotherapy treatment contemplated in the OCF-23 submitted the same day. Dr. Kachroo's CNR's reveal that at the time the treatment plan was submitted, the applicant had attended one virtual appointment on July 4, 2022, two days after the accident. Dr. Kachroo noted that the hospital conducted diagnostic tests and prescribed pain medication for the applicant's accident- related soft tissue injuries. Dr. Kachoo prescribed muscle relaxants but did not recommend further treatment or physiotherapy at the time.
18Therefore, I find that the evidence does not support a finding that the treatment plan in dispute is reasonable and necessary on a balance of probabilities. Accordingly, the applicant is not entitled to $2,743.97 for the treatment plan dated July 6, 2022.
Is the applicant entitled to $2,835.03 for physiotherapy services, proposed by Physiomed Westwood Inc. in a plan dated January 31, 2023?
19I find that the applicant has established that the treatment plan is reasonable and necessary.
20The goals of the treatment plan prepared by Dr. Ciraco and submitted on January 31, 2023, are pain reduction, increased range of motion, increase in strength, a return to activities of daily living, and a return to pre-accident work activities. The treatment plan also identifies areas of improvement from the applicant's previous treatment including pain from lumbar rotation, the restoration of lumbar flexation and bending.
21The applicant submits that he had continued to experience back pain from his accident-related soft tissue injuries and had been advised to continue with physiotherapy by his treating physicians.
22The respondent argues that the CNRs of Dr. Kachroo should be assigned little weight, because the applicant participated in mostly virtual appointments. I disagree. The evidence reveals that the applicant attended in-person appointments with Dr. Kachroo, Dr. Price, and Dr. Abraham, leading up to and contemporaneous with the submission of the January 31, 2023, treatment plan. Further, the respondent argues that Dr. Kachroo appeared to respond to the applicant's requests for referrals to tests and treatment, however, these requests appear to occur after the treatment plan was submitted and are not relevant to my analysis.
23I find that the treatment plan is corroborated by contemporaneous medical evidence. The CNRs of the Albion Finch Medical Centre reveal that following the applicant's December 6, 2022, appointment, Dr. Kachroo referred the applicant to see a sports medicine specialist, Dr. Gary Abraham, to advise on the applicant's back pain, noting that the applicant had pain when sitting, and in addition to taking Lyrica for pain, he had been undergoing regular physiotherapy. Dr. Abraham's report to Dr. Kachroo reveals that at the applicant's January 4, 2023, examination, Dr. Abraham told the applicant to "he needs to continue to work hard with his physiotherapist." Additionally, at his February 15, 2023, appointment, Dr. Price advised the applicant to resume physiotherapy for his back, because he found "better relief with it."
24I find that the IE report of Dr. Khan, dated April 15, 2023, sheds little light on whether the treatment plan is reasonable and necessary. At the applicant's March 23, 2023, s.44 examination, the applicant complained of lower back pain, and Dr. Kahn found tenderness in the applicant's lumbar spine on examination, which I find is consistent with the CNRs of the applicant's treating physicians. However, Dr. Khan did not opine on the treatment plan or whether further facility-based treatment would ameliorate the applicant's lower back pain and limited his conclusions to the applicability of the MIG.
25For the reasons above, I find that the applicant has proved, on a balance of probabilities, that the treatment plan for physiotherapy services is reasonable and necessary. Accordingly, the applicant is entitled to $2,853.03 for the treatment plan dated January 31, 2023.
Interest
26The applicant is entitled to any interest owing on the treatment plan for physiotherapy services submitted by Physiomed Westwood Inc. on January 31, 2023, in accordance with s.51 of the Schedule.
Award
27I find that the respondent is not liable to pay an award.
28The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning "behaviour, which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate." The onus is on the applicant to prove, on a balance of probabilities, that the respondent's conduct meets these criteria.
29The applicant argues that the respondent failed to adjust the applicant's file although the respondent had sufficient information to remove the applicant from the MIG prior to his removal on June 28, 2024. The applicant relies on correspondence from the insurer dated June 28, 2024, informing the applicant that he has been removed from the MIG based on information received from Dr. Kachoo dated October 6, 2022.
30The respondent counters that the applicant's file was reviewed and adjusted according to available information. The applicant underwent a s.44 examination with Dr. Nicole Azizli, clinical psychologist, on March 15, 2023. Dr. Azizli conducted psychometric testing and an interview, and in her April 5 IE report, opined that the applicant did not meet the criteria psychological diagnosis, and that his current presentation did not warrant removal from the MIG. The respondent submits that the applicant's file was reviewed, and the applicant was removed from the MIG, after the applicant submitted updated records from the applicant's psychotherapist, Dr..Santhireswaran and CAMH dated in March and April 2024.
31Based on the evidence before me, I find on a balance of probabilities that the respondent adjusted the applicant's file and removed the applicant from the MIG and approved prior treatment plans as a result of the applicant's submissions of the updated records from March and April 2024.
32The applicant further submits that the respondent had sufficient evidence to remove him from the MIG based on a diagnosis of myofascial chronic pain in 2023. The applicant has not provided sufficient evidence for me to determine whether the applicant had provided information to the respondent to warrant the applicant's removal from the MIG due to chronic pain with functional impairment.
33Finally, the applicant submits that the respondent failed to reconsider the treatment plans for physiotherapy and paid the outstanding balance for the treatment plans to Physiomed Westwood Inc., on August 1, 2024, without providing an explanation. It appears that the respondent did not notify the applicant, or explain the payments as of September 16, 2024, when the applicant submitted his reply submissions. However, as the payments were made a little over one month after the applicant was removed from the MIG, I find it more likely than not that the respondent did review the treatment plans in dispute.
34While the applicant has established that the respondent failed to communicate the reasons for the payments made to Physiomed Westwood Inc, I find that the applicant has not met his onus to prove on a balance of probabilities that the respondent's behaviour rises to the level of "excessive, imprudent, stubborn, inflexible, unyielding or immoderate."
35For these reasons, I find the applicant is not entitled to an award.
ORDER
36I find that:
i. The applicant is not entitled to the treatment plan for physiotherapy services dated December 9, 2021.
ii. The applicant is entitled to the treatment plan for physiotherapy services dated January 31, 2023, with interest in accordance with s. 51 of the Schedule.
iii. The applicant is not entitled to an award.
Released: April 25, 2025
Kathleen Wells
Adjudicator